When a loved one dies, grief can make legal terms even harder to comprehend then usual. Here’s clarity on probate: most families will work through their state’s probate process to settle the affairs of the deceased. Fortunately, unless there are conflicts and complexities, most families will avoid probate litigation.
Probate: A Public Process
Ordinarily, and simply put, probate is the legal, public process that settles our affairs when we die. Most states offer expedited processes depending upon the level of assets involved. The terminology and particulars of probate vary by state. Christine Matus of the Matus Law Group offers this snapshot of probate, with a focus on New Jersey:
“In the State of New Jersey, the probate process happens regardless of whether a person has a will or not. If there is a valid will, assets will be distributed according to that will. If there is no valid will, the courts will dictate how the assets are distributed. The courts will distribute the required documentation and dictate the responsibilities of the administrator and the personal representative. If there are neither, the courts will appoint them…”
Unpaid taxes, debts, conflicts among family members or contested wills are examples of issues that cause complexities and delays during probate. Barring these snags, the probate process commonly takes a few months to a year. Fundamentals of probate, as NOLO explains, include:
- proving in court that a deceased person’s will is valid (usually a routine matter)
- identifying and inventorying the deceased person’s property
- having the property appraised
- paying debts and taxes, and
- distributing the remaining property as the will (or state law, if there’s no will) directs.
It is not uncommon for probate court judges to require a probate bond. The terminology for these bonds varies by state and circumstance. For example, in New Jersey, a personal representative bond or administrator bond might be required. The purpose of a personal representative bond or administrator bond is essentially the same: protecting the interests of the estate and its beneficiaries in accordance with state law. When the court requires a bond, it is essential to obtain it quickly, to meet deadlines and avoid delays. That’s why Colonial Surety makes it easy and speedy to obtain all kinds of probate bonds with our direct, digital service. At Colonial, securing any probate bond is simple: get a quote online, fill out the information, and enter a payment method. Print or e-file the bond right from your home or office—even while at court. You can learn more about probate bonds—and obtain them, here, now:
Probate Litigation Explained
While most families will participate in their state’s probate process upon the death of a loved one, probate litigation will hopefully be avoided. As New Jersey attorney Christine Matus explains, “Probate litigation is the judicial process of challenging provisions or resolving perceived injustices, errors, or objections regarding the will or trust of a loved one. The role of a probate litigation attorney is to help their clients address concerns about the estate, the provisions of a will or trust, estate administration, and many others.” Kennedy & Rusham Law further explains:
The term, “probate litigation” refers to lawsuits filed in probate court — and the legal proceedings associated with resolving these lawsuits. Probate litigation may include:
- Contesting a will
- Disputing a trust
- Highlighting undue influence
- Disproving false claims from creditors
- Removing an executor for breaching their fiduciary duties
Estate Planning Advice
It’s important for families to keep in mind that solid estate plans frequently involve both the establishment of a trust and a pour-over will. These tools work together to ensure that our affairs are as organized as possible, and curtail some of the stress families frequently experience as loved ones age. Different types of trusts, such as revocable living trusts, medicaid asset protection trusts and special needs trusts can be established, depending on family circumstances. Assets transferred into trusts do not go through the probate process. Pour-over wills, as The Heritage Law Center explains, ensure that assets not placed in trusts are accounted for upon death:
The pour-over will basically acts as a safety net for the trust. If the person who created the trust (grantor) forgot to transfer an asset to the trust, at the time of their death that asset will pass through the pour-over will to the trust, however; the asset must first go through probate. The probate process should be shorter than usual since the assumption is that there will be minimal assets involved and the court doesn’t have to ensure all the beneficiaries have received notice and distributions; the court must only ensure that the assets get poured over into the trust.
Probate Snags?
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Founded in 1930, Colonial Surety Company is a direct writer of surety bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.